Legal Ease – Reasonable adjustments and employment

This resource is part of our Disability Essentials range. You can find the other free resources that are included in this range by clicking here.

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Introduction

The most often asked question about reasonable adjustments are “what does reasonable mean?

The lawyer’s answer is “it depends” which is both unhelpful and accurate. The answer will depend on all the circumstances including the effect of the disability on the person who needs the adjustment, their job and role within the business and the nature of that business.

Before focusing in on what’s reasonable we need to pull right back to view the big picture. The Equality Act 2010 says:

“Employers have a duty to make reasonable adjustments if the disabled person has been put at a substantial disadvantage by a ‘provision, criterion or practice’ (PCP) imposed by the employer compared to someone who is not disabled.”

What is a PCP?

Let’s break this down. First what is meant by a “provision, criterion or practice” or PCP?

The answer is that a PCP can be almost any arrangement made by an employer. It can include

• Policies that are written down and apply to everyone, such as an absence management policy or flexible working policies
• Unwritten rules or “the way we do things around here”
• One-off activities such as an event, meeting or a social outing
• The layout of a building or site
• Communication methods such as telephones, email, video conferencing
• Tasks required in a role such as interacting with the public or accurate data entry
• Performance targets or the quantity and speed of work.

In short, if it is a working arrangement then it might well be a provision, criterion or practice or PCP.

Example – Jennie

Jennie’s employer allows flexible start and finish times. Jennie has chosen to start work at 9.30am and leave at 5.30pm. When Jennie arrives in the morning the car park nearest to the building entrance is full. Jennie has to park in the overflow car park and walk over uneven ground to the building entrance. Jennie walks with crutches and finds walking that distance, particularly when it is wet or icy, difficult.

What are the provisions, criteria, or practices (PCPs) in this example about Jennie?

First, there is the flexible start time policy which allows employees to start and finish work at earlier or later times. This is a policy and so could be a PCP.

Another, less obvious PCP is the requirement for Jennie to walk the distance from the overflow car part over uneven ground to the building entrance.

What does “substantial disadvantage” mean?

A substantial disadvantage isn’t a huge or enormous barrier. In the Equality Act it merely means a disadvantage or barrier that is “more than minor or trivial”.

What is an adjustment?

An adjustment is a change to the way things are done. It can be

• New or different equipment
• Additional training
• Changes to the physical environment
• Changes to job tasks
• Changes to location either within a building, to a different site or working from home
• Changes to working times or the hours worked
• Redeployment or transfer to a more suitable role
• Information in alternative formats such as large print, electronically or in Easy Read
• Assistance or support from another person such as a support worker or sign language interpreter
• Alterations to physical features of the environment such as doors, steps, lifts, escalators or desks
• Changes to temperature, sound levels or lighting,

The above are only examples. There is no definitive list of adjustments. If the change will remove or reduce the substantial disadvantage, it can be an adjustment.

What is a “reasonable adjustment?”

Three steps to “is it reasonable?” when making reasonable adjustments

Employers (and yes, the duty is on the employer) must

1. First identify the PCP that is creating the barrier for the disabled people.

2. Secondly ask how and why this PCP creates a barrier or places the disabled person at a substantial disadvantage because of their disability. The barrier must be related to the person’s disability and place them at a greater disadvantage than people without that disability.

3. The third step is to consider what adjustments (not reasonable adjustments at this stage) would remove or reduce the effect of that barrier or disadvantage. This will certainly involve talking to the disabled person but might also need an employer to seek expert help from, for example, Occupational Health advisers, Access to Work, disability organisations or technology and facilities managers.

Example – Jennie

What adjustments might reduce or remove the barriers for Jennie.

• Resurfacing the overflow car park or creating a safer pathway?
• Jennie could start work earlier and then she wouldn’t have to park in the overflow car park?
• A reserved parking space for Jennie near the building entrance?

All three are adjustments but which are reasonable?

Deciding if an adjustment is reasonable

When deciding if an adjustment is reasonable an employer should consider:

• The effectiveness of the adjustment in preventing the disadvantage.
• The practicality of the adjustment.
• The financial and other costs of the adjustment and the extent of any disruption caused.
• The extent of the employer’s financial or other resources.
• The availability to the employer of financial or other assistance to help make an adjustment, e.g. through the Access to Work (AtW) scheme.

Cost, in and of itself, is rarely going to the reason why an adjustment is unreasonable. When thinking about cost the budget of the organisation as a whole must be taken into account not just the budget or funds available to a particular department, site or manager.

Example – Jennie

Jennie could come in earlier to get a parking space nearer to the entrance – but that would mean she couldn’t take advantage of the flexible start times policy like everyone else. That places her at a disadvantage compared to people without her disability.

Jennie’s employer could resurface the car park surface, and this is probably a good thing to do in the long-term.

The most effective, immediate, and cost-effective adjustment, however, would be to reserve a car parking space near the building entrance for Jennie. This is likely to be the most reasonable adjustment in this case.

Jennie’s employer might say that reserving a space for one employee will cause resentment in other employees. The law, however, allows employers to treat disabled people more favourably. Other employees also do not face the obstacles that Jennie does in walking from the overflow carpark to the entrance.

It is important to remember that the law requires employers to treat people fairly and that does not always mean treating everyone the same. Sometimes, to be fair, you need to treat people differently, and that can mean making a reasonable adjustment for a disabled person.

When must an employer make reasonable adjustments?

Employers must make reasonable adjustments when they know or could reasonably be expected to know that an applicant or an employee is at a substantial disadvantage in the workplace because of a disability.

An employer might know because the employee tells them, but employers cannot deny knowledge if an employee doesn’t explicitly tell them that they are disabled and facing barriers. Managers must be trained to “spot the signs” that someone might have a disability and talk to them about the support they need. They need to remember too that many people who are protected by the disability provisions of the Equality Act 2010 do not describe themselves as disabled.

For more about how to spot the signs and have conversations about disability with employees read our People Manager Toolkit.